K. K. Eleja & Co.
By A. O. Mohammad Esq.
15th March, 2014

“The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally no court is entitled to interfere even if the court had the discretion been theirs might have exercised it otherwise”
Mobil Oil (Nig) Ltd. Vs Federal Board of Inland Revenue (1977) 3 S.C. 97 at 141
1.01     This is a case overview of the Supreme Court decision in UNILAG & ANOR V. AIGORO (1985) 16 (pt. 1) NSCC 88. For clarity purposes, the title of the case has another version, albeit with a different citation. The present case under review was the earlier decision of the Supreme Court in 1985 which came up for determination upon a dismissal of the appeal by the Court of Appeal for want of diligent prosecution.
1.02     The latter decision is cited as UNILAG & ANOR v. AIGORO (1991) 3 NWLR (Pt. 179) 376, which subsequently came up after the earlier decision in 1985.
1.03     This overview will give a brief analysis of the facts of the case, the reasons for the decisions of the court, the application of the principles therein and a number of cases where those principles have been applied. The overview will conclude with a brief practical approach to the case.
2.01     The plaintiff/respondent claimed jointly and severally against the defendants/appellants a declaration that he was the Deputy Chief Engineer of the University of Lagos, and also that the purported anticipatory breach of contract between him and the University was null and void. He also claimed an injunction restraining the university from committing breach of contract. In the alternative, he claimed N50,000 damages for breach of contact.
2.02     After hearing the evidence, the trial judge granted the declarations sought and awarded N12,200 as damages for breach of contract with N1000 costs against the university. He dismissed the claim against the vice chancellor, with no order as to costs.
2.03     Being dissatisfied with the judgment, the defendants appealed to the Court of Appeal. The court of Appeal dismissed their appeals for want of prosecution without hearing on the merits. On the hearing date, the appellants had applied for an adjournment, their reasons being firstly that they had not received the appeal record and secondly that their counsel was ill.
2.04     The court of appeal refused the application on the grounds that the defendants had failed to produce a medical certificate of their counsel’s illness, that the counsel holding brief refused to argue the appeal on the spot with the court’s copy of the record consisting of 400 pages and concluded also that the defendants were no longer interested in pursuing their appeal. The court also awarded N700 as costs against the appellants. The appellants appealed to the Supreme Court for the refusal of their application for adjournment by the court of Appeal as well as the order of dismissal for want of prosecution.
3.01     In a unanimous decision of the apex court, the court allowed the appeal, with the following reasons
a.         An appeal court will only interfere with judicial discretion exercised by a lower court where the discretion has been exercised arbitrarily, guided by irrelevant considerations, under a misconception of law, under a misapprehension of fact, illegally, or where such has not been exercised bona fide, or in any way where it is in the interest of justice to do so.
b.         The guiding principle in the exercise of discretion is to make sure that it is exercised judicially and judiciously on sufficient materials.
c.         A court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavor to give the party asking for same the opportunity and also not doing injustice to the other party.

4.00     ANALYSIS
4.01     The above principles were enunciated in the lead decision by Bello JSC (as he then was). While reviewing the facts, his lordship made reference to the records of appeal on the particular date when counsel to the appellant asked for an adjournment because they hadn’t the records which would guide them in preparation for additional grounds, and that counsel who handled the matter in the trial court was indisposed. As against the application, counsel on behalf of the respondent submitted that the grounds for the objection were untenable and submitted that the appellants were not interested in the appeal. He further strengthened his stand by insisting that both the Vice chancellor and Registrar of the University, who were the principal actors had left the university.
4.02     The decision of the Court of appeal was in line with the submissions of the Respondent’s counsel. Holding that the appellants had the obligation to source out the record of appeal, that five grounds had already been filed, that the court was even ready to lend him a copy, there and then, that there was no proof of illness of the counsel who handled the case in the lower court and that the chief participants have left the school.
4.03     The Appellant’s case was that there was no evidence before the court before it formed the opinion that the appellant had no interest in the appeal, that there was no evidence of the departure of the named officers (as the case was against the university and not the officers), that the lawyer’s statement from the bar was sufficient enough to prove his colleagues absence in court.
4.04     In resolving the issues, the court reiterated the position of law concerning the status of an institution suing in its own capacity, that the lower court took irrelevant issues into consideration, did not take the vital ones into consideration (like the payment of additional fees, records was duly dispatched on time), that it would have been impossible for the counsel to go through 459 pages when the court below offered to give out its own record of appeal. The summation of the lead judgment was therefore that the court took irrelevant things into consideration and shut its eyes to the relevant ones while exercising its discretion.
4.05     It is worthy of note that these guiding principles had come up before the same court in Odusote v. Odusote (1971) 1 All NLR 219 at 233 as Nnamani JSC (as he then was) quoted out the relevant portion which reads:
“it is a well established principle of law that all judicial discretions must be exercised according to common sense and according to justice and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a court of appeal to have it reviewed”
4.06     As the apex court had noted, the court below clearly shut its eyes to the relevant materials and clothed its reasons with irrelevant ones. One of such mentioned by the court was the issue of timing, and its relevance towards determining the interest of the appellant in prosecuting the appeal. In his lead judgment, Eso JSC (as he then was) restated the fact that the appellants had satisfied all the conditions of appeal including the payment of additional fees which had been brought to their notice on 10th May, 1982; that the appeal had not unduly waited for hearing because the record was dispatched to the Court of Appeal on 2nd April 1982 and the court fixed its hearing on 24th May, 1982; that the court did not check from its record when counsel to the appellants was served with the hearing notice, which according to the appellant’s counsel was 23rd May, 1982.
4.07     Similar cases over the years have been decided on the same front, as appellate courts try to examine the exercise of jurisdiction by lower courts. On adjournments, the Supreme Court in the case of Nwadilogbu v. A.L.R.B.D.A. (2011) All FWLR (Pt 562) 1612 did not disturb the exercise of discretion to refuse an application of adjournment. While relying on Unilag’s case, the court reiterated the point of law that courts have the discretion to either allow adjournments or not. And that once the basis is on reliable materials, such would not be questioned on appeal. In the case, affidavits in support of motion were filed by the Applicants in the trial court, counter affidavits were also filed by the respondent, after which further affidavits were filed by the applicants. On the date fixed for hearing, the court confirmed service on all parties and whether the Respondents have issues to file in relation to the further affidavit, which they refused. While the counsel to the applicant was about ending his submissions, the respondent counsel then applied for an adjournment to ‘reply to the new issues’. The court refused. Upon appeal to the court of appeal, the decision was reviewed and upon further appeal to the Supreme Court, the Court held the refusal to be in accordance with the laid down principles of exercising discretion judiciously. It should be further noted here that the exercise of discretion seems proper in Nwadilogbu’s case, if at all one is to wonder why a similar one was allowed in Unilag’s case. This is because granting an adjournment in that wise would negate the principles laid down in Eronini & Ors v. Iheuko (1989) 1 N.S.C.C. 503 where the Supreme court held inter alia that an order of dismissal would be required once hearing of a case had commenced and the other party seeks to discontinue (in Nwadilogbu’s case, add to or perfect) his case.
4.08     The above case could however be distinguished from Unilag’s case. It is important to stress that in Nwadilogbu’s case, hearing had already commenced when the application for adjournment was made, unlike in Unilag’s case where the date was only fixed for hearing and same had not commenced. It is also noteworthy that under the extant Court of Appeal Rules, filing of brief of argument was not the practice back then, in Unilag’s case. If at all the appellant had filed his brief of argument, the issue of asking for adjournment wouldn’t have come up as he would have already filed his brief of argument and simply adopt same on hearing date.
4.09     Another case that explains the discretionary powers of a court is that of Adeniyi v. Akinyede (2010) All FWLR (Pt. 503) 1257 at 1340 – 1341, a case on election petition, the court recapped the principles of exercise of discretion as stated in Unilag’s case. Interestingly, a party had asked for adjournment because an appeal was pending in the court of appeal, an application which the court refused, relying on the provisions of the practice direction to the effect that appeals do not operate as stay of proceedings in election petition matter, as same is sui generis. The case was also referred to in NNPC v. Clifco (NIG) ltd (2011) All FWL (Pt 583) 1875 at 1893 where the court’s discretion to award cost of 7,500 was questioned on appeal, a discretionary power which the Supreme Court held to be valid and devoid of illegality or absurdity. 
4.10     In sum, a court’s exercise of discretion is always guided by the principles discussed in Unilag’s case. It must be exercised judicially and judiciously, based on relevant and sufficient materials placed before a court. Once these are in order, an appellate court will be reticent in interfering in such an exercise of discretion.
5.01     Applications for adjournments are totally within the discretionary powers of a court. A court may allow or refuse same based on reasons it deems fit. It is therefore a duty of counsel to make sure that relevant material facts as well as proof of same, if necessary, are placed before the court. Where the court refuses to grant an application for adjournment, counsel could seek to test the exercise of such discretion by the court in an appellate court.
5.02     The right to fair hearing has its tentacles upon applications for adjournments. Where such is prayed by a party, one should try to accede to same to afford the other party present its case. This is mainly because where such is refused, and upon appeal found to have been done maliciously, the overall effect would tell on the time it takes to complete the trial.
5.03     Counsel should not always be ready to accept all applications for adjournment from an opposing party all in the name of fairness and fellowship. Where adjournments are calculated to cause unnecessary delay, objections should be made promptly as it would affect the overall management of the case, especially with regards to time.


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